• No results found

Joseph W. Barber M E A S F C A S T K A ’ A R : T

N/A
N/A
Protected

Academic year: 2022

Share "Joseph W. Barber M E A S F C A S T K A ’ A R : T"

Copied!
28
0
0

Loading.... (view fulltext now)

Full text

(1)

T

HE

K

IDS

A

REN

T

A

LL

R

IGHT

: T

HE

F

AILURE OF

C

HILD

A

BUSE

S

TATUTES AS A

M

ODEL FOR

E

LDER

A

BUSE

S

TATUTES Joseph W. Barber

Elder abuse is a serious and pervasive problem in America. The federal government’s failure to adequately address this problem leaves states’ elder abuse statutes as the main legal tools designed to protect the elderly. Despite states’ intentions to effectively prevent and reduce elder abuse, these statutes are largely ineffective. Their shortcomings stem from the flawed assumption that elder abuse statutes should be modeled after child abuse laws. While child abuse statutes have been successful, the same methods are ineffective in the elder abuse context because the forms of abuse are distinct. Furthermore, states’ elder abuse statutes lack proper enforcement mechanisms.

Mr. Barber proposes that states’ responses to domestic violence are more appropriate models for crafting a legal remedy for elder abuse. The optimal way to reduce elder abuse is to empower the elderly and eliminate societal prejudices toward them. To achieve this goal, Mr. Barber recommends focusing on the abusers, empowering the victims, enforcing existing laws, and improving educational efforts to address this problem. Finally, Congress should adopt a model federal statute to serve as a guide for state legislatures and make elder abuse prevention a national priority.

Joseph W. Barber is Editor-in-Chief 2007–2008, Member 2006–2007, The Elder Law Jour- nal; J.D. 2008, University of Illinois, Urbana-Champaign; B.S. Electrical Engineering, 2002, Northwestern University. The author would like to thank the continued sup- port of his family and friends without whom this would not be possible.

(2)

I. Introduction

S

amantha is a ninety-three year-old woman with diabetes who has lived in her home for sixty years.1 Samantha’s granddaughter Denise recently moved in and lives rent-free, ostensibly as her caregiver.2 Denise’s unemployed boyfriend has moved in as well.3 One day, Denise becomes abusive and pushes Samantha down a flight of stairs while drunk.4 Samantha was reluctant to report Denise to the authorities because she felt both embarrassed and a duty of familial responsibility.5 Unfortunately, Samantha’s story is far more common than one would like to think.

Her story highlights the problem of elder abuse and the need to halt it.

In response to experiences like Samantha’s and a lack of a uni- form federal remedy, the states enacted statutes to prevent elder abuse.6 States turned to existing child abuse statutes as a starting point for elder abuse laws, which state legislatures deemed analo- gous.7 These statutes required certain individuals considered to be in the best position to detect abuse early on to report any suspected cases of abuse.8

This Note examines the dominant statutory framework for com- bating and preventing elder abuse. Part II provides background in- formation on elder abuse as states currently define it and the main method states have used to address the problem so far—mandatory reporting statutes. Part III explores the critiques of mandatory report-

1. NATL COMM. FOR THE PREVENTION OF ELDER ABUSE & NATL ADULT PROTECTIVE SERVS.ASSN,NATL CTR. ON ELDER ABUSE,THE 2004SURVEY OF STATE ADULT PROTECTIVE SERVICES:ABUSE OF ADULTS 60YEARS OF AGE AND OLDER 7 (2006), available at http://www.nasua.org/pdf/2-14-06%20FINAL%2060+

REPORT.pdf [hereinafter 2004SURVEY]. The names of the individuals mentioned in the report have been changed to protect their privacy.

2. Id.

3. Id.

4. Id.

5. Id.

6. See John B. Breaux & Orrin G. Hatch, Confronting Elder Abuse, Neglect, and Exploitation: The Need for Elder Justice Legislation, 11 ELDER L.J.207,213–16(2003) (discussing 1980 and 1985 congressional committee hearings on the problems of elder abuse and mistreatment in America and the call for congressional action to simplify and centralize state action); Nina Santo, Breaking the Silence: Strategies for Combating Elder Abuse in California, 31 MCGEORGE L.REV. 801, 809 (2000).

7. Breaux & Hatch, supra note 6, at 213; Charles Pratt, Banks’ Effectiveness at Reporting Financial Abuse of Elders: An Assessment and Recommendations for Improve- ment in California, 40 CAL.W.L.REV. 195, 200–01 (2003).

8. See, e.g., FLA.STAT. § 415.1034 (2006); MD.CODE ANN.,FAM.LAW § 14-302 (West 2006); MONT.CODE ANN. § 52-3-811 (2006).

(3)

ing in the elder abuse context and looks at the enforcement of elder abuse statutes through the criminalization of failing to report by a mandatory reporter. Finally, Part IV recommends that additional ap- proaches be implemented to create a more comprehensive elder abuse prevention strategy.

II. Background

A. The Growing Elder Abuse Problem

The mistreatment of older Americans is a large and disconcert- ing problem. This problem will only get larger in coming years as the baby boomer generation ages.9 From 1990 to 1995 the elderly popula- tion increased by a factor of eleven and will double by 2050 according to current growth rates.10 The elderly population is currently 35 mil- lion people, and 4.2 million members of the elderly population are over eighty-five years-of-age.11 Thus, the elderly will make up 20% of the population in 2050 as compared to 12.4% currently.12 Further- more, the fastest growing segment of the elderly population are those individuals aged eighty-five years and older.13

As Americans live longer, the need for institutions and practices designed to ensure adequate care for the aging population increases.14 Diabetes, heart disease, and other chronic medical ailments require extensive and continuing care,15 and place greater pressure on Ameri- can society to provide adequate health care for the elderly population.

9. U.S.CENSUS BUREAU,U.S. DEPT OF COMMERCE, CURRENT POPULATION REPORTS,POPULATION PROFILE OF THE UNITED STATES:1997, at 7 (1998), available at http://www.census.gov/prod/3/98pubs/p23-194.pdf [hereinafter 1997 CENSUS REPORT].

10. Id. at 48. For purposes of this note, elderly Americans are those aged sixty-five and older.

11. YVONNE J. GIST & LISA I. HETZEL, U.S. DEPT OF COMMERCE, WE THE PEOPLE:AGING IN THE UNITED STATES 1 (2004), available at http://www.census.

gov/prod/2004pubs/censr-19.pdf [hereinafter AGING REPORT].

12. Id.

13. LISA HETZEL &ANNETTA SMITH,U.S.DEPT OF COMMERCE,THE 65YEARS AND OVER POPULATION: 2000,at2 (2001), available at http://www.census.gov/

prod/2001pubs/c2kbr01-10.pdf [hereinafter 65&OVER POPULATION].

14. 1997CENSUS REPORT, supra note 9, at 51 (stating that as age increases, so does need for some form of personal assistance: “[t]he proportion requiring per- sonal assistance jumped from 8 percent for those 65 to 69 years old to 45 percent for those 85 years old and older.”).

15. Dorothy C. Raskini-Gregory & Miriam Piven Cotler, The Elderly and Health Care Reform: Needs, Concerns, Responsibilities and Obligations, 21 W.ST.U.L.REV. 65, 74 (1993).

(4)

Dovetailed with the general veneration of youth and health in Ameri- can society that marginalizes many elderly family members, these health problems result in an increasingly vulnerable, significantly at- risk American population nearing crisis.16

The most recent data compiled by the state of Illinois in its Fiscal Year 2005 Elder Abuse and Neglect Annual Report shows a steady in- crease in reports of elder abuse since 1996.17 The largest increase in reports of abuse occurred between Fiscal Years 1998 and 1999.18 This increase is likely due to a mandatory reporting law introduced the year before.19 For Fiscal Year 2004, there were 8359 reported cases of elder abuse reflecting an increase of 8.9% over Fiscal Year 2003—the largest increase since 1999.20 The rise in reported abuse demonstrates that current prevention strategies are not working.

According to a 2004 survey conducted by the National Center of Elder Abuse (NCEA), reports of elder and vulnerable adult abuse in- creased 20% from 2000, and substantiated reports were up 15%.21 The most common type of reported abuse was self-neglect, followed closely by caregiver neglect.22 While the statistics could lead one to believe that self-neglect is the most common form of elder abuse, they are somewhat deceptive: combining the percentage of reports result- ing from some form of caregiver neglect and emotional, physical, or sexual abuse, the non-self-directed abuse jumps to almost 50% of re- ported abuse.23 Thus, abuse by a third party is at least as likely as self- abuse.

16. Nina A. Kohn, Second Childhood: What Child Protection Systems Can Teach Elder Protection Systems, 14 STAN.L.&POLY REV. 175, 182 (2003).

17. ILL. DEPT ON AGING, ELDER ABUSE AND NEGLECT PROGRAM ANNUAL REPORT FY 2005, at 2 (2005), available at http://www.state.il.us/aging/1news_

pubs/publications/ea-an_report2005.pdf [hereinafter ILLINOIS 2005DATA].

18. Id. The number of elder abuse reports jumped from 6,213 in 1998 to 7,157 in 1999, an increase of 15.2%.

19. John F. Erbes et al., Survey of Illinois Law: Elder Law, 23 S.ILL.U.L.J. 1009, 1031 (1999). Public pressure and a push from the Illinois Attorney General even- tually cajoled the legislature into adopting a mandatory reporter requirement, and in 1989 a mandatory reporting requirement was added, making Illinois one of the later states to do so. Id.

20. ILLINOIS 2005DATA, supra note 17, at 2.

21. 2004SURVEY, supra note 1, at 5. Substantiated reports are those that are shown to be actual cases of abuse upon investigation.

22. Self-neglect constituted 29.4% of reports, and caregiver neglect accounted for 26.1%. Id. at 18. See discussion infra Part II.B for definition of the various types of elder abuse.

23. Of substantiated reports, caregiver neglect accounts for 20.1%, emotional abuse accounts for 14.6%, sexual abuse counts for 1.0%, and physical abuse ac- counts for 10.5%. 2004SURVEY, supra note 1, at 17. This means 46.2% of substanti-

(5)

B. Defining Elder Abuse

Consistent definitions of elder abuse do not exist because each state has a different statutory definition. Despite the differences, common themes and similarities do exist among the various state de- finitions, and by and large, these similarities outweigh any differ- ences.

Elder abuse statutes generally define neglect as a situation in which a dependant adult is unable to perform, or a caregiver does not provide, tasks and services necessary for adequate health and wel- fare.24 Self-neglect refers to behavior in which the elder adult threat- ens her own health or safety.25 Self-neglect is generally caused by the onset of depression, dementia, or other mental impairments, such as Alzheimer’s disease.26 Common examples of self-neglect include an adult being unable or unwilling to bathe herself adequately, failing to take required medication, or failing to obtain adequate amounts of food or clothing.27 Caregiver neglect describes situations in which the caregivers fail to perform the necessary tasks they are paid to per- form.28 This form of neglect runs the gamut of behaviors from refus- ing to give medication to failing to turn an invalid confined to bed.29

Statutory abuse, on the other hand, usually requires some sort of physical action by the abuser. In Illinois, as in many other states,

ated elder abuse reports are the result of physical abuse from someone other than the elder adult victim. Id.

24. See CAL.WELF.&INST.CODE § 15610.57 (West 2008); 320 ILL.COMP.STAT. 20/2(g) (2007); KY.REV.STAT.ANN. § 209.020(15) (West 1999); see also 2004SURVEY, supra note 1, at 9 (defining neglect as deprivation of “life necessities such as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials”); Arlene D. Luu & Bryan A. Liang, Clinical Case Management: A Strategy to Coordinate Detection, Reporting, and Prosecution of Elder Abuse, 15 CORNELL J.L.&PUB.POLY 165, 172 (2005).

25. 2002 National Victim Assistance Academy, Victimization of the Elderly, http://www.ojp.usdoj.gov/ovc/assist/nvaa2002/chapter14.html (last visited Feb.

18, 2008) [hereinafter Elder Abuse Chapter]; see also 320 ILL.COMP.STAT. 20/2(i-5).

“‘Self-neglect’ means a condition that is the result of an eligible adult’s inability, due to physical or mental impairments, or both, or a diminished capacity, to per- form self-care tasks that substantially threaten his or her own health.” Id.

26. See Mary Twomey et al., From Behind Closed Doors: Shedding Light on Elder Abuse and Domestic Violence in Late Life, 6 J.CENTER FOR FAMILIES,CHILD.&CTS. 73, 74 (2005); Elder Abuse Chapter, supra note 25.

27. Elder Abuse Chapter, supra note 25.

28. See Audrey S. Garfield, Elder Abuse and the States’ Adult Protective Services Response: Time for a Change in California, 42 HASTINGS L.J. 859, 873 (1991). Caregiv- ers can be both family members and paid assistants. Id.

29. Id.; 2004SURVEY, supra note 1, at 10; Elder Abuse Chapter, supra note 25.

(6)

abuse can be physical, sexual, mental, or financial.30 Physical abuse is the actual striking of the dependant adult.31 Sexual abuse includes any nonconsensual sexual act with a dependant adult, including those victims that are incapacitated and lack the ability to consent.32 Mental abuse includes acts such as verbal assaults, threats, intentional inflic- tion of distress and harassment, as well as nonverbal action that pro- duces these results.33 Isolating the dependant adult from family and friends and giving the dependant adult the “silent treatment” are also forms of mental abuse.34 Financial abuse refers to the mismanagement of an elderly person’s assets or property.35 Common examples of fi- nancial abuse include simple stealing, forcing someone to sign a power of attorney, and unauthorized check cashing.36

For the purposes of this Note, all types of abuse and neglect are collectively referred to as “elder abuse.” All of these forms of abuse trigger mandatory reporting statutes. Self-neglect and caregiver abuse, alone, account for roughly 80% of all reports37 and are the focus of most states’ elder abuse laws.38

30. 320 ILL.COMP.STAT. 20/2(a) (“‘Abuse’ means causing any physical, men- tal or sexual injury to an eligible adult, including exploitation of such adult’s fi- nancial resources.”); see also CAL.WELF.&INST. § 15610.07 (West 2008); IOWA CODE

§ 235B.2(5)(a) (2007); KY.REV.STAT.ANN. § 209.020(8) (West 2007).

31. Elder Abuse Chapter, supra note 25; see also Jennifer Beth Glick, Protecting and Respecting Our Elders: Revising Mandatory Elder Abuse Reporting Statutes to In- crease Efficacy and Preserve Autonomy, 12 VA.J.SOC.POLY &L. 714, 718 (2005).

32. Elder Abuse Chapter, supra note 25. Included in sexual abuse are all types of sexual assault or battery such as rape, sodomy, or coerced nudity, and even sexually explicit photography. Id.

33. Id.

34. Id.

35. Id.

36. Id.

37. 2004SURVEY, supra note 1, at 19.

38. See, e.g., CAL.WELF.&INST.CODE § 15600 (West 2008); 320 ILL.COMP. STAT. 20 (2007); KY.REV.STAT.ANN. § 209 (West 2007). The other 20% of reports are financial exploitation crimes. 2004SURVEY,supra note 1, at 9. This is however rapidly changing with the rise in statutes designed to prevent the financial abuse of the elderly. Id. at 9.

(7)

C. Causes of Elder Abuse by Caregivers

Caregiver abuse occurs in both institutional39 and residential40 settings, and the explanations for abuse in both settings are similar.

Living situations in residential housing range from the dependant adult living in an adult child’s home to the dependant adult living in his own home, possibly with a caregiver, either familial or not.41 Insti- tutional living refers to nursing homes and similar situations. Imme- diate family members commit almost 70% of the instances of elder abuse in the residential setting, a number that rises to almost 90%

when extended family is included.42

Elder abuse is caused by a complex mix of factors and circum- stances. Five main factors, however, help explain elder abuse: care- giver stress, social isolation, inadequate staffing and training, impair- ment of the elderly adult, and prejudice. These five factors are not exhaustive and do not necessarily exist in every instance of elder abuse, but they provide a sufficient framework for understanding the causes of elder abuse.

1. CAREGIVER STRESS

The factor most often blamed for elder abuse is caregiver stress.43 The sources of caregiver stress, however, vary greatly. A few repre- sentative samples include the financial dependence of the caregiver,44 the dependant adult acting in a difficult manner,45 and substance abuse of the caregiver.46 Furthermore, caregivers with either a history of committing violence or being the victim of violence are more likely to commit violent acts themselves, thereby perpetuating the tradi- tional cycle of violence.47

39. Elder abuse in state-licensed nursing homes or their equivalent is usually perpetrated by a nursing home staff member. Kohn, supra note 16, at 178. “Elder abuse is common in America’s nursing homes. In 1999, the Health Care Financing Administration or ‘HCFA’ (now known as the Centers for Medicare and Medicaid Services or ‘CMS’) cited 14.1% of the nation’s nursing homes for elder abuse.” Id.

40. Residential care settings are those where the adult lives alone or with a caregiver. See Id., at 178–79.

41. Id. at 178.

42. Twomey et al., supra note 26, at 75.

43. Glick, supra note 31, at 719; Kohn, supra note 16, at 179; Twomey et al., su- pra note 26, at 75.

44. Kohn, supra note 16, at 179.

45. Glick, supra note 31, at 721. This may range from the dependant adult re- fusing help to simple pouting and other childish behavior. Id.

46. Glick, supra note 31, at 719; Twomey et al., supra note 26, at 75.

47. Kohn, supra note 16, at 179.

(8)

2. SOCIAL ISOLATION

The social isolation of elderly adults is also a factor that contrib- utes to elder abuse. Dependant elderly adults typically lack the social contacts and interactions of independent adults.48 Often the caregiver is the only person a dependent adult will see on a daily basis, making abuse hard to detect.49 Social isolation can also facilitate the care- giver’s abusive behavior.50 If the caregiver knows there is little chance of the dependant adult encountering outside help, there may be the temptation to commit abusive acts that would be noticed if the de- pendant adult had more frequent outside contact.51

3. INADEQUATE STAFFING AND TRAINING

Inadequate staffing is an alarming problem in nursing homes throughout the nation.52 Even well-trained nurses or nurse’s assis- tants cannot provide adequate care if they are responsible for more patients than they can handle.53 The shortage of staff closely relates to the inadequate training of caregivers, especially in the residential set- ting.54 Due to the high cost associated with qualified elder care, un- qualified family members may attempt to care for their elderly rela- tives.

4. IMPAIRMENT OF THE ELDERLY ADULT

Impairment of the elderly adult itself actually may be one of the most critical factors that place the elderly at risk for abuse.55 The most likely victim of elder abuse is an adult over the age of eighty,56 which

48. Id. at 180; see also Glick, supra note 31, at 720.

49. Glick, supra note 31, at 720.

50. Kohn, supra note 16, at 180.

51. See id.

52. Id. (citing study that found only 8% of the nation’s nursing homes were sufficiently staffed to provide the basic level of adequate care needed to secure federal funding); see also Michael J. Davidson, Governmental Responses to Elder Abuse and Neglect in Nursing Homes: The Criminal Justice System and the Civil False Claims Act, 12 ELDER L.J. 327, 331 (2004) (“A 1981 congressional report found that many nursing home care providers are ‘often ill-trained, grossly overworked, and very poorly paid.’ More than [two] decades later the same problems exist.”).

53. Kohn, supra note 16, at 180.

54. The Nursing Home Reform Act Turns Twenty: What Has Been Accomplished, and What Challenges Remain?: Hearing Before the S. Spec. Comm. on Aging, 110th Cong. 87, 88–89 (2007) (statement of Alice H. Hedt, Executive Director, National Citizens Coalition for Nursing Home Reform).

55. Kohn, supra note 16, at 181; Twomey et al., supra note 26, at 75.

56. 2004SURVEY, supra note 1 at 18.

(9)

is the age when impairments are most common.57 Further, “nearly 60% of the victims of substantiated incidents of elder abuse experience some degree of cognitive impairment.”58 The oldest and most im- paired adults are also the least likely to resist abuse or take some form of preventative action, and therefore they are the most vulnerable to abuse.59

5. PREJUDICE

Finally, American society’s prejudice toward the elderly and ag- ing influences the prevalence of elder abuse.60 Because society often views the elderly as less valuable members, caregivers may feel justi- fied to treat their dependants with a lower level of care.61 Fueled by these societal prejudices, caretakers may view their dependents as less important or subhuman.62 Additionally, society is generally less will- ing to punish those that commit abuse of the elderly because of simi- lar justifications.63

D. Mandatory Reporting Statutes

States only began to address the problem of elder abuse and ne- glect in light of studies, including a 1981 congressional report, that first highlighted the problem.64 Legislators viewed child abuse stat- utes as a logical place to start addressing elder abuse.65 As a result,

57. AGING REPORT, supra note 11, at 11.

58. Kohn, supra note 16, at 181.

59. Glick, supra note 31, at 721; see also Richard J. Vangelisti, A Senior Duty:

Why Not Mandatory Reporting for Elder Abuse?, 65OR.ST.B.BULL.5, 17–18 (2005) (describing the same effect in child abuse cases whereby as children get older they are less likely to become the victims of child abuse).

60. Glick, supra note 31, at 720 (citing articles that highlight a “demonstrable connection between ageist attitudes among health care workers and the psycho- logical abuse of the elderly”).

The general ageism present in modern American society is also apparent in contexts other than elder abuse. See, e.g., R. Richard Banks et al., Discrimination and Implicit Bias in a Racially Unequal Society, 94CAL.L.REV. 1169, 1182 n.67 (2006) (cit- ing a psychological study that shows bias based on age); Michael L. Rustad, Ne- glecting the Neglected: The Impact of Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits, 14 ELDER L.J. 331, 362 (2006) (discussing juror bias toward elderly witnesses).

61. See Glick, supra note 31, at 720.

62. See Kohn, supra note 16, at 181.

63. Id.

64. See Garfield, supra note 28, at 863–64, 869.

65. Lawrence R. Faulkner, Mandating the Reporting of Suspected Cases of Elder Abuse: An Inappropriate, Ineffective and Ageist Response to the Abuse of Older Adults, 16 FAM.L.Q. 69, 74–75 (1982); Vangelisti, supra note 59, at 16–17.

(10)

most states appropriated mandatory reporting statutes from analo- gous child abuse statutes.66

1. CHILD ABUSE MANDATORY REPORTING LAWS

Commentators did not recognize child abuse as a problem until the 1960s. In 1962, C. Henry Kempe described Battered Child Syn- drome in an article published in the Journal of the American Medical As- sociation at the same time the Department of Health, Education, and Welfare (DHEW) promulgated a model statute requiring physicians to report suspected cases of abuse.67 State legislatures reacted by passing statutes criminalizing child abuse and incorporating the DHEW model statute with its mandatory reporting requirements.68 State statutes were inconsistent, however, because they lacked standard definitions for child abuse and differed as to who was required to re- port suspected cases.69

In 1974 Congress passed the Child Abuse Prevention and Treat- ment Act (CAPTA) with the goals to create a uniform definition of child abuse and to create a program to attack and treat substantiated cases of child abuse.70 CAPTA was designed to provide a national standard for child abuse and prevention by tying federal grant money to the development of state programs modeled after the federal act.71 CAPTA specifically called for the creation of training programs geared to educate professionals, in inter alia, medicine and law en- forcement, to detect and prevent child abuse,72 as well as assist states in managing state child services and protection systems.73

The most important aspect of the CAPTA program is the manda- tory reporting of suspected cases of abuse by certain groups of indi-

66. See, e.g., 320 ILL.COMP.STAT. 20/2(f-5) (2007).

67. Mark R. Brown, Rescuing Children from Abusive Parents: The Constitutional Value of Pre-Deprivation Process, 65 OHIO ST.L.J. 913, 942 (2004); Caroline T. Trost, Note, Chilling Child Abuse Reporting: Rethinking the CAPTA Amendments, 51 VAND. L.REV. 183, 191–92 (1998).

68. Trost, supra note 67, at 192 (stating that by 1967 every state, the District of Columbia, and the U.S. Virgin Islands had child abuse prevention statutes).

69. See Jill D. Moore, Comment, Charting a Course Between Scylla and Charybdis:

Child Abuse Registries and Procedural Due Process, 73 N.C.L.REV. 2063, 2071 (1995).

70. See Brown, supra note 67, at 942; Karen L. Ross, Revealing Confidential Se- crets: Will It Save Our Children?, 28 SETON HALL L.REV. 963, 965 (1998).

71. See Brown, supra note 67, at 942–43.

72. 42 U.S.C. § 5106(a)(1) (2006).

73. § 5106(a).

(11)

viduals.74 Congress used mandatory reporting in the belief mandated reporters have regular contact with at-risk, isolated children who are unable to make reports themselves.75 Additionally, mandated report- ers are able to observe the signs of abuse, often committed by family members or others in a trust relationship, and thus are better situated to report suspected abuse.76

2. ELDER ABUSE AND MANDATORY REPORTING

Congress first addressed the issue of elder abuse in 1981 through a report presented by the House Select Committee on Aging.77 The report determined that up to one million of the nation’s elderly could be victims of elder abuse and recommended the passage of a statute modeled after CAPTA78 Despite the dire warning, Congress took no immediate action. In 1987, Congress passed the Older Americans Act in an attempt to address the problem but failed to provide funding.79 Congress also attempted to pass an Elder Abuse and Prevention Act as recommended by the 1981 Report but failed to gain the necessary votes.80

Ten years later, the House Subcommittee on Health and Long- Term Care issued a report, Elder Abuse: A Decade of Shame and Inaction, damning Congress’s “woefully inadequate” response to the elder abuse problem.81 The Subcommittee found that many states had passed elder abuse statutes—using mandatory reporting laws—in the 1980s expecting to receive federal funding in reliance on the 1981 con- gressional report.82 As evidence of the lack of support for these state statutes, this report found that states annually spent $3.80 per elderly resident, on average, on elder abuse prevention while spending $45.07 annually per resident child on child abuse.83 State spending on elder

74. See Bridget A. Blinn, Note, Focusing on Children: Providing Counsel to Chil- dren in Expedited Proceedings to Terminate Parental Rights, 61 WASH.&LEE L.REV. 789, 812 (2004).

75. Garfield, supra note 28, at 881–82; Kohn, supra note 16, at 187, 189.

76. Kohn, supra note 16, at 189–90.

77. Sarah S. Sandusky, Note, The Lawyer’s Role in Combating the Hidden Crime of Elder Abuse, 11 ELDER L.J. 459, 462 (2003).

78. Id.

79. Molly Dickinson Velick, Mandatory Reporting Statutes: A Necessary Yet Un- derutilized Response to Elder Abuse, 3 ELDER L.J. 165, 189 (1995). Congress funded the program for a miniscule three million dollars in 1990. Id.

80. Id. at 178.

81. Sandusky, supra note 77, at 462.

82. Velick, supra note 79, at 178–79.

83. Id. at 179.

(12)

abuse had actually decreased 40% due to a corresponding decline in federal block grants.84 The new report also revealed an increase in abuse and a decrease in reporting after states implemented mandatory reporting laws.85 Since the early 1990s, congressional committees have held a series of hearings in an attempt to raise the elder abuse problem in the national conscience;86 all without tangible results.

The mandatory reporting strategy for combating child abuse had successfully increased reporting of child abuse,87 and legislators be- lieved that there would be similar success in reducing elder abuse if they imposed a similar requirement.88 The rationale for the use of mandatory reporting in elder abuse statutes was largely the same as for child abuse—mandated reporters are in a position to observe at- risk groups that are unable to self-report.89 Thus, the primary method used to detect and prevent elder abuse was mandatory reporting, and today all states have some form of a mandatory reporter statute for elder abuse.90 Mandated reporters for elder abuse, similar to the mandated reporters for child abuse, are social service workers, medi- cal professionals, and other impartial third parties in regular contact with elderly adults.91

Adopting the rationale used to support mandatory reporting in child abuse, mandatory reporter proponents believe reporting sus- pected cases to the appropriate authorities is the first step in counter- ing the prevalence of elder abuse.92 They attribute the rise in reports

84. Id.

85. Sandusky, supra note 77, at 462.

86. Breaux & Hatch, supra note 6, at 217.

87. Kohn, supra note 16, at 188.

88. Sandra Guerra Thompson, The White-Collar Police Force: “Duty to Report”

Statutes in Criminal Law Theory, 11 WM.&MARY BILL RTS.J. 3, 19 (2002); see also Heath R. Oberloh, A Call to Legislative Action: Protecting Our Elders from Abuse, 45 S.D.L.REV. 655, 665–66 (2000).

89. See discussion supra Part II.D.2; see also Faulkner, supra note 65, at 74–75;

Glick, supra note 31, at 726.

90. 2004SURVEY, supra note 1, at 14;. see also CAL.WELF.&INST.CODE § 15630 (West 2008); 320 ILL. COMP. STAT. ANN. 20/2(f-5) (2007); LA. REV. STAT.ANN.

§ 14:403.2C (2007); MD.CODE ANN.,FAM.LAW § 14-302(a) (LexisNexis 2007); VT. STAT.ANN. tit. 33, § 6903(a) (2007).

91. See Lee Beneze, Reporting Elder Abuse: Not a Requirement but an Option for Lawyers, 89 ILL.B.J. 93, 93 (2001). The author acknowledges attorneys are generally not included in mandatory reporting statutes, but reporting attorneys would be protected through immunity and exceptions to confidentiality requirements. Id. at 93–94.

92. See Velick, supra note 79, at 172. Even opponents to mandatory reporting statutes recognize that they are predominately tools for discovering new cases.

(13)

of elder abuse over the last decade to mandatory reporting require- ments.93 In fact, proponents rely on studies that purport to show the discovery of a large percentage of documented cases of elder abuse due to this reporting requirement.94

3. STATE ELDER ABUSE LAWS

State elder abuse statutes are predominantly similar to each other. Every state includes a definition of what constitutes elder abuse within the state as well as a list of mandated reporters.95 Typi- cally the state statutes also create an agency to respond to elder abuse complaints.96 This agency is then responsible for recording instances of abuse, investigating allegations of abuse, forwarding substantiated cases to the proper authorities, training professionals and other man- dated reporters on elder abuse, and promulgating rules or policy changes concerning elder abuse.97 State elder abuse statutes also in- clude provisions giving mandated reporters immunity from civil or criminal prosecution in the case of a mistaken, but good-faith, report of abuse.98 Anonymity for the reporter is also guaranteed through statutory provisions.99 If defamation or other liability was a “Sword of Damocles” hanging over mandated reporters’ heads, they could not perform their duties under the law.100 Thus, these provisions are very important to achieving the goals of the statutes.

Despite these similarities, a few significant differences do exist among state elder abuse statutes. Some states have criminal penalties for mandated reporters that fail to report,101 usually a high misde-

Faulkner, supra note 65, at 76 (“[mandatory reporting] is intended to be a means of identifying the abused individual so services can be rendered”).

93. Vangelisti, supra note 59, at 16; see also Velick, supra note 79, at 172.

94. Vangelisti, supra note 59, at 16. Citing a DHS study of community reports of elder abuse, the author notes “[o]f those 6,110 reports, 48.7 percent were made by mandatory reporters. The DHS determined that abuse was substantiated in 2,486 or 40.7 percent of the 6,110 reported cases.” Id. The article also cites an Ore- gon Department of Human Services study that stated 77% of reported child abuse cases were made by mandatory reporters. Id.

95. See supra Part II.B.

96. See, e.g., 320 ILL.COMP.STAT. 20/5 (2007).

97. See id.

98. See, e.g., 320 ILL.COMP.STAT. 20/4(a-7).

99. See, e.g., 320 ILL.COMP.STAT. 20/4(c).

100. See generally Velick, supra note 79, at 168 (describing mandatory reporting statutes as they apply to health professionals).

101. See, e.g., 320 ILL.COMP.STAT. 20/4(c).

(14)

meanor, while others do not.102 Interestingly, doctors and other pro- fessionals are generally spared from the criminal sanctions and are merely referred to their respective professional organization for pun- ishment.103 Illinois has a unique provision requiring mandated re- porters to testify in any court proceeding that results from a report.104 This additional requirement is highly unusual because it seems to ne- gate the provisions for anonymity and immunity.

III. Analysis

Considering the ubiquity of mandatory reporting in state elder abuse statutes, the criticisms and effectiveness of the statutes need to be addressed, especially if federal legislation is ever adopted. Oppo- nents argue that elder abuse is too different from child abuse to apply the same mandatory reporting requirements.105 Further, mandatory reporting statutes lack internal enforcement provisions. Rather, they are enforced through criminal penalties imposed on mandated report- ers for failing to report incidents of abuse.106 Mandatory reporting statutes, thus, can only be as effective as the associated criminal sanc- tions.

A. Criticism of Mandatory Reporting Statutes

The efficacy of mandatory reporting requirements is question- able in the context of elder abuse, despite the prevalence of these re- quirements in most states’ statutes. The main critiques are: elderly adults are more socially isolated than children, elderly adults should be accorded a higher degree of respect concerning their self- determination, elder abuse is difficult to diagnose, and elder abuse should be considered part of domestic violence instead of analogized to child abuse.

102. See generally Glick, supra note 31, at 722 (describing the prevalence of criminal prosecution for nonreporting).

103. See, e.g., 320 ILL.COMP.STAT.20/4(e).

104. 320 ILL.COMP.STAT. 20/4.2 (“Any mandated reporter who makes a re- port . . . under this Act shall testify fully in any judicial proceeding resulting from such a report, as to any evidence of abuse, neglect, or financial exploitation or the cause thereof.”). This provision would also limit the number of reports actually made, raising a further contradiction with the stated desire to protect elder adults from abuse. See Erbes et al., supra note 19, at 1033.

105. Garfield, supra note 28, at 877.

106. See, e.g., 320 ILL.COMP.STAT. 20/4(e).

(15)

1. ELDERLY ADULTS ARE MORE SOCIALLY ISOLATED THAN CHILDREN

One problem with using mandatory reporting statutes for elder abuse is the elderly population’s greater isolation compared to that of children.107 Children, by their nature, are generally energetic and con- stantly engaged in many social situations. Children are statutorily re- quired to attend school108 where they will interact with other students and their teachers. If the child makes friends at school, then interac- tions between the child and the friends’ parents will be likely. Chil- dren also frequently visit doctors and hospitals for the regular acci- dents and sicknesses attendant to childhood. Thus, there is a greater chance that child abuse will be detected and reported by someone outside the child’s home.

The elderly adult’s situation is different than that of a child.

Adults by their nature tend to be more isolated than children—either by choice or circumstance.109 Elderly adults do not have mandatory schooling to force social interaction. If an adult chooses to remain in her home, there is nothing the government can legally do. This isola- tion is aggravated when the elderly adult has few friends or family members living nearby. It is in this context that self-neglect is most likely to occur—when depression or dementia sets in and no one is around to recognize the problem.110 The problem does not go away for elderly adults in institutional living situations if no one visits them.111

As a result of the elderly population’s greater isolation, one of the main justifications for using mandatory reporting statutes is ab- sent. Proponents push for mandatory reporting under the assumption impartial third parties are available to report the abuse.112 When there is no access by these third parties the abuse cannot be observed and reported. This highlights why basing elder abuse statutes on their child abuse counterparts may be misguided. If elder abuse is not no-

107. Velick, supra note 79, at 174.

108. See, e.g., KAN.STAT.ANN. § 72-1111(a) (2008) (generally requiring school attendance from age seven until eighteen); LA.REV.STAT.ANN. § 17:221A(1) (2007) (same); OR.REV.STAT.§ 339.010(2005)(same); R.I.GEN.LAWS § 16-19-1(a) (2007) (generally requiring compulsory attendance from the age of six until sixteen).

109. Kohn, supra note 16, at 189.

110. See id.

111. See id. at 180.

112. See id. at 187.

(16)

ticed by anyone other than the abuser and the dependant adult, the well-intentioned statute on the books is meaningless in practice.

2. SELF-DETERMINATION OF THE ELDER ADULT

Another problem with mandatory reporting laws for elder abuse is the implicit assumption that victims lack self-determination.113 The theory of parens patriae, in part, formed the basis of child abuse laws.114 Under this theory, the idea of children as legal incompetents is an ac- cepted legal reality.115 Society has determined that children do not have the experience and maturity to make many important decisions for themselves.116 It is in the best interest of society to protect and shield children until they are more experienced and can make in- formed decisions on their own.117 Thus, children are legally unable to make decisions for themselves until they reach the statutorily defined age of majority—the accepted age of self-determination.118 This places a greater importance on the role of the parent or guardian as protector of the child. When the parent or guardian abuses this relationship it is in the best interest of the state to ensure someone is speaking for the interest of the child.

Parens patriae is fraught with problems, however, when indis- criminately applied to adults. The effect of mandatory reporting stat- utes is often a well-intentioned social worker substituting his reason- ing for that of the elderly adult.119 This usurpation of the decision-

113. Glick, supra note 31, at 726; see also Faulkner, supra note 65, at 76.

114. Garfield, supra note 28, at 877. Parens patriae is an English common-law theory whereby the state has a sovereign interest to act as guardian of people and their property if they cannot properly take care of themselves. BLACKS LAW DICTIONARY 1144 (8th ed. 2004).

115. See Matthew S. Feigenbaum, Comment, Minors, Medical Treatment, and Spousal Disagreement: Should Solomon Split the Child?, 41DEPAUL L.REV. 841, 856–57 (1992) (arguing that the state has a two-fold interest in protecting children: (1) in order to perpetuate societal ideals and (2) to minimize economic costs of institu- tionalizing children in abusive or unhealthy environments).

116. Matt Steinberg, Free Exercise of Religion: The Conflict Between a Parent’s Rights and a Minor Child’s Right in Determining the Religion of the Child, 34 U.

LOUISVILLE J.FAM.L. 219, 221 (1996).

117. See id.; Feigenbaum, supra note 115, at 857.

118. See ALASKA STAT. § 25.20.010 (2007); DEL.CODE ANN. tit. 1, § 701 (2007);

NEB.REV.STAT. § 28-807(a) (2007); S.D.CODIFIED LAWS § 26-1-1 (2007) (all declar- ing the general age of majority to be eighteen with the exception of alcohol pur- chase which requires twenty-one to be the minimum age).

119. Glick, supra note 31, at 727.

(17)

making process further stigmatizes and humiliates the adult and per- petuates the idea that elderly Americans are second-class citizens.120

Society generally assumes that once an individual reaches the age of self-determination decisions concerning health, living arrange- ments, and other personal decisions are made by the adult.121 Existing laws that bar the state or family members from forcing medical treat- ment on nonconsenting adults, even in life-or-death situations, reflect this societal belief.122 As one scholar observed, if we as a society allow adults to stand by their beliefs and choices in life-and-death situations, why would society force state action in situations that are not directly life threatening?123

3. DIFFICULTY IN DIAGNOSIS

An additional problem with basing elder abuse laws on child abuse laws is that elder abuse is more difficult to diagnose than child abuse. Using mandatory reporting to prevent child abuse arose at the same time X-ray machines became a common method of medical di- agnoses.124 X-ray machines, for the first time, allowed doctors to dis- cover a long-term injury pattern for child abuse.125 Unfortunately, elder abuse cannot be detected by the same diagnostic techniques;

doctors cannot distinguish a pattern of abuse from the normal signs of aging by using an X-ray machine.126 Thus, normal signs of aging can be difficult to distinguish from signs of abuse without the aid of more advanced diagnostic machines.127

As people age they are more likely to bruise.128 Additionally, balance and stability decline with age.129 The combination of these factors makes it likely that an elderly adult may merely lose his bal- ance and hit a piece of furniture, leading to a bruise. Thus, a doctor

120. Id.

121. Garfield, supra note 28, at 878.

122. See Glick, supra note 31, at 731.

123. Garfield, supra note 28, at 881.

124. Faulkner, supra note 65, at 75.

125. Id.

126. See Glick, supra note 31, at 725.

127. Breaux & Hatch, supra note 6, at 223 (“Studies have documented how rec- ognition of elder abuse varies even among professionals charged with preventing it”); Kohn, supra note 16, at 186.

128. Seymour Moskowitz, Saving Granny from the Wolf: Elder Abuse and Ne- glect—The Legal Framework, 31 CONN.L.REV. 77, 148 (1999).

129. See, e.g., D.G. Thelen et al., Age Differences in Using Rapid Step to Regain Bal- ance During a Forward Fall, 60 J. GERONTOLOGY SERIES A:BIOLOGICAL SC.&MED. SC. 1553, 1555–57 (2005) (finding age-related declines in balance).

(18)

cannot diagnose abuse solely because a bruise is present. This leads to overreporting (doctors and other health care professionals making re- ports that are not really abuse) or underreporting (health care profes- sionals assuming normal aging instead of abuse). Either way, an accu- rate count of abuse cases is unlikely as real abuse goes unchecked or normal aging is treated as suspected abuse.

4. ELDER ABUSE SHOULD BE TREATED MORE LIKE DOMESTIC VIOLENCE INSTEAD OF CHILD ABUSE

The approach to the elder abuse problem is undergoing a change in some quarters as a result of looking at the problem from a new an- gle. According to these advocates, elder abuse should be treated more like domestic violence than child abuse.130

It is likely that in many cases of elder abuse the same dynamics present in domestic violence are at work in elder abuse settings.131 Most cases of elder abuse involve the type of victim-abuser relation- ship seen in other forms of domestic violence, which is characterized by a cycle of violence and dynamic of power and control between the abuser and the victim.132 Complicating the detection and prevention of elder abuse, as in the domestic violence situation, an elderly adult may not wish to undergo the real or perceived humiliation and intru- sion into his private life that a report of abuse may entail.133 This fear of humiliation and shame is likely higher for male elder abuse victims, as they grew up in a time of perceived male strength and stoicism.

It is often said, “better the devil you know than the devil you don’t.” There are many psychological reasons why an adult in an abusive situation, either in the elder abuse or domestic violence situa- tion, would not want to report the abuse and invite state action.

Commentators give four main reasons why a domestic violence victim may not report the abuse: power and control, denial, family and eco- nomic reasons, and emotional attachment.134 The domestic abuser keeps his or her victim in a perpetual “state of siege” through physical and nonphysical acts of abuse, threats, and economic and social isola-

130. See Moskowitz, supra note 128, at 100.

131. Id.

132. Kohn, supra note 16, at 178; Twomey et al., supra note 26, at 76; see also dis- cussion supra Part II.C.4 (describing the factors contributing to the cause of elder abuse and the likelihood that the abuse is committed by a family member).

133. See Faulkner, supra note 65, at 89; Velick, supra note 79, at 173.

134. See Matthew Miller, The Silent Abuser: California’s Promotion of Misdemeanor Domestic Violence, 34 W.ST.U.L.REV. 173, 176–78 (2007).

(19)

tion.135 Denial is a common psychological self-defense mechanism that allows the victim to maintain a sense of control and minimize the emotional pain of the abuse.136 The abuser is generally in a position of financial control that effectively traps the victim in the relationship.137 When the abuser is a family member, the victim may feel the judg- ment of the rest of the family and society in addition to internal feel- ings of guilt.138 Emotional attachment is also common when the abuser is a relative or close friend.139 The victim may feel a sense of protection in the presence of the abuser as a result of the relation- ship.140 Ironically, this sense of security often increases during periods of abuse.141

While elder abuse and domestic violence are not identical, there are many similarities between both forms of abuse. The abuser of an elderly adult is often a family member or an institutional caregiver who exercises control over the elderly adult’s daily life and care.142 By definition, adults in nursing homes cannot generally care for them- selves, placing their livelihoods in the fate of someone else. An eld- erly adult may rationally decide that it is better to live in an abusive home than to be placed in a state-run institution with a potentially worse living situation.143 Family pressure is certainly present as abused elderly adults may not wish to report instances of abuse com- mitted by family members.144 Additionally, the victim may not want to report the abuse out of a desire to keep family members free of trouble.145

The problem with mandatory reporting for elder abuse is that it removes control from the elderly adult and places it with the state—

similar to child abuse cases. For the state to determine that there is greater state interest in subjugating the rights of elderly Americans when it does not do so for battered women exemplifies the underlying prejudice toward the elderly in American society.

135. Id. at 176–77.

136. Id. at 177.

137. See id.

138. Id. at 176 n.21.

139. Id. at 177–78.

140. Id.

141. Id. at 178.

142. See Glick, supra note 31, at 715.

143. See id. at 725–26.

144. See Oberloh, supra note 88, at 665; see also Velick, supra note 79, at 175.

145. Glick, supra note 31, at 725.

References

Related documents

• The three aspects of the aesthetic object show how aesthetic experiences and recognitions can be described and analysed by emphasising the object’s sensory qualities,

Undergraduate Courses Accounting and Banking BA/BSc Accounting and Economics BA/BSc Accounting and Finance BA/BSc (Hons) Administration and Management BA (Hons) Banking and

Based on a review of various bond covenants 1 , and to comply with the requirements of AB 26, as amended by AB 1484, to make payment for all “indebtedness obligations” to

 “Interaction  Process  Analysis  Article.”  Interaction  Process

(2019) "Diet Quality as a Mediator of the Relation between Income-to-Poverty Ratio and Overweight/Obesity among Adults: Moderating Effect of Sex," Health Behavior

Then different optimizations for spectrum management in cognitive radio network like genetic algorithm, PSO, Artificial bee colony, firefly algorithm is compared

is a creative design agency that has been specializing in trade show exhibits and graphic design for over 20 years.. As a full-service design and exhibit house, we provide a